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A v B (Financial Relief: Agreements) [2005] EWHC 314 (Fam)

Appeal against ancillary relief order giving effect to earlier agreement between the parties dismissed.

Family Division: Black J (17 January 2005)

Summary
Appeal against ancillary relief order giving effect to earlier agreement between the parties dismissed.

Background
The parties to the appeal married in 1976 and separated in 1996; there were no children. In 1999, an agreement was drawn up to determine arrangements for their main assets, ie the matrimonial home, two cars, an oriental rug collection and a life assurance policy; this was stated as being made 'in full and final settlement of all and any claims that either party may have against the other'.

In early 2004, the husband brought proceedings, arguing that he should be granted further provision despite the 1999 agreement, and contending that he had been blackmailed or pressured into making the agreement. The district judge rejected the husband's argument, and made such orders as were necessary to put the agreement into effect.

The husband appealed against the orders on the ground that the district judge had failed to evaluate the agreement correctly, and should have given it significantly less weight than he did. He also submitted that the district judge had completely failed to carry out the duty imposed on him to evaluate all the factors under section 25 of the Matrimonial Causes Act 1973 at the time of the hearing before him and to exercise his discretion in the light of them.

The judge specifically reviewed the authorities, including Smith v Smith [2000] 3 FCR 374, which establish that an earlier contract existing between the parties is only one of the considerations to which the judge must give weight, and the fairness or otherwise of the agreement must not be decided as a preliminary point.

Judgment
Held, dismissing the appeal, that the district judge had been entitled to make the orders that he did, even though he had not articulated his reasons for concluding that the agreement was fair in the light of the totality of the s 25 factors and, in particular, that it met the husband's needs.

Looking at the relative positions of the parties in 2004, the husband would be able to meet his own needs from his own resources, albeit that some adjustments in his living arrangements may be necessary. Although the district judge failed to spell out all the s 25 factors (and particularly in the 2004 context), his conclusion that the appropriate ancillary relief order was for no further payment to be made to the husband in addition to that provided for in the 1999 agreement was one which he was entitled to reach and which was proper in the light of all the circumstances of the case.

Comment by Tacey Cronin, Albion Chambers

In this appeal from the District Judge, Black J reiterates the statement of the law on the effect of agreements entered into by parties to a marriage on their divorce or separation as set out by Thorpe LJ in Smith v Smith [2000] 3 FCR – nothing has changed since Edgar and Camm. The real argument was over the arithmetic done by the District Judge, the appellant seeking to argue that various factors had been left out of account. There is another endorsement of the analysis by Bennet J in Norris v Norris of Lord Nicholls comments in White v White as to inherited property. Finally, the District Judge's decision is upheld, he having said clearly that he was applying all the s25 factors. Black J notes that one or two aspects of the appellant's case were not fully explored on his behalf at the hearing and there is a slight sense of a reminder that omissions from the presentation of a case at first instance may be impossible to remedy on appeal because that is the nature of the modern appeal – it is not a rehearing, but a review of the decision made by the Court on the material before it.

Read the full text of the judgment here